Maine lawmakers are preparing a series of measures that would tighten oversight of the Department of Environmental Protection, but they are unlikely to order an investigation of the past activities of Commissioner Patricia Aho.

In the new legislative session next month, legislators will consider measures that would put the department under greater scrutiny, with its conduct in the long-term relicensing of dams and the introduction of new “routine” rules and regulations receiving special attention.

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Maine DEP Commissioner Patricia Aho

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Environmental and progressive groups called for Aho’s resignation last summer after the Portland Press Herald/Maine Sunday Telegram reported revelations about her department’s failure to meet key dam deadlines and to adequately implement or enforce certain environmental laws, as well as her past ties to the companies that her department is charged with regulating.

“It’s been clear that citizens statewide have concerns about a lack of transparency, whether it’s issues around the chemical industry or mining rules or dam relicensing,” said Assistant House Majority Leader Jeff McCabe, D-Skowhegan. “It’s clear that there will need to be more public involvement and oversight.”

But legislators said a proposed investigation of the department’s activities under Aho is unlikely to go forward, for lack of evidence that the commissioner has broken any laws. Such evidence is needed in advance, Democratic legislators said, to get the required approval from the government oversight committee, whose membership is split evenly between the parties.

“We’re not going to have specific enough information about something having happened that is illegal rather than simply poor judgment,” said Sen. Christopher Johnson, D-Somerville, who first proposed an investigation this summer. “As much as I am unsettled by what has happened, I think they (at the DEP) have been very careful about crossing the line in terms of what is legally permissible.”

PROPOSED INVESTIGATION

In July, Johnson wrote the head of the state’s independent auditing agency, the Office of Program Evaluation & Government Accountability, asking it to determine whether the DEP had committed “unethical behaviors,” failed to uphold its legislative mandates, or had broken any laws “in the course of actions or failures to act as reported in the recent Portland Press Herald series.”

The series, published in June, reported the results of a seven-month investigation that revealed how Aho had stifled laws and programs she had been paid to defeat in her previous career as a lobbyist for the oil, chemical, waste management, drug and real estate development industries. The series also related allegations of widespread intimidation of DEP staff and examined how the department missed a key deadline in the relicensing of the Flagstaff Dam in Eustis – to the benefit of the dam’s owner, which was represented by Pierce Atwood, the law firm for which Aho had done her lobbying.

Subsequently the Press Herald revealed the department missed similar deadlines at two more dam projects on the St. Croix and came within hours of missing a fourth at the Brassua Dam near Moosehead Lake. In all cases, the missed deadlines irrevocably waived the state’s authority to set terms for water levels in reservoirs and rivers that affect waterfront property owners, fish spawning and passage, and recreation for a generation.

Johnson withdrew his initial request in late July, saying he had realized the language was too broad and that state investigators would require more specific questions to conduct their research. But lacking a smoking gun showing wrongdoing, Democrats have decided to focus on preventing future problems.

“We’re not going after what happened in the past, we’re looking at how we in the Legislature can ensure that things work better going forward,” said state Sen. Jim Boyle, D-Gorham, co-chairman of the legislative committee that overseas the department. “There’s some sense of urgency to this. We don’t want a year or two to go by without having these decisions taken up.”

ACCOUNTABILITY BILL

Two bills will be considered by the Legislature when it reconvenes next month, though the bills may ultimately be combined into one “transparency and accountability” bill.

The first, sponsored by McCabe, would require the DEP to report to the Legislature as dam deadlines approach and tightens requirements for public input.

“This will make it more difficult for that kind of lapse to happen, no matter what the reason for it might be,” Johnson said.

The second, sponsored by Rep. Gay Grant, D-Gardiner, would require that all rule changes made by the DEP – not just ones deemed to be “substantive” – be reviewed by the Board of Environmental Protection, an independent oversight body.

DEP spokeswoman Jessamine Logan said in an email that the department could not comment on either measure until their precise language is developed.

A third legislative response to the DEP’s perceived shortcomings is not moving forward, thanks to the unexpected opposition of Senate President Justin Alfond, D-Portland. The initiative would have effectively forced the DEP to regulate a class of chemicals called phthalates under the Kid Safe Products Act.

The LePage administration has been criticized by environmental groups for its sluggish implementation of that 2008 law designed to protect children and fetuses from harmful chemicals. In early 2011, the LePage administration sought to repeal it altogether, but was rebuffed by the Republican-controlled 125th Legislature. For nearly three years thereafter, the DEP failed to propose any new chemicals for regulation under the act and attempted to remove a chemical – bisphenol-a – that had already been listed under the act.

An initiative put forward recently by Grant would have directed the DEP to list phthalates, a plastic softener that scientists strongly suspect disrupts the reproductive organs of male fetuses. But that measure was defeated by the legislative leaders Nov. 21 when Sen. Alfond joined his Republican colleagues in opposition.

CONTROVERSIAL SWITCH

Alfond’s vote was controversial in Democratic circles, as the phthalates measure had the high-profile support of Sen. Emily Cain, D-Orono, the past Democratic leader in the House, and former House Speaker Hannah Pingree, D- North Haven. Alfond sent an explanatory letter to his caucus explaining that he “could not ignore that the Governor is moving forward” by proposing four chemicals of his own, so he felt compelled to vote against the phthalates measure to protect the integrity of the process.

But the LePage administration’s proposal is itself controversial. On Nov. 21, the DEP suddenly proposed listing four chemicals under the Kid Safe Act: arsenic, formaldehyde, mercury and cadmium. Proponents of the law pointed out that the move would have no practical benefit, as these chemicals had already been removed from most consumer products in Maine under state and federal laws.

House Speaker Mark Eves, D-North Berwick, called the proposed rules “nothing but window dressing” last month and the Environmental Health Strategy Center – a consumer safety group – noted they had been worded in such a way as to specifically exclude pregnant women from protection.

Logan countered Tuesday that they chose the four chemicals because they are “confirmed to have serious adverse health effects on humans” and are “known to be currently being used in common products intended to be used by children” in Washington, the first state to require comprehensive reporting by manufacturers as to what products contained the substances.

A Dec. 17 public hearing on the proposed rules was postponed after Attorney General Janet Mills informed Aho that the DEP had violated state law by not giving stakeholders sufficient advanced notification. The DEP says that hearing is now scheduled for Jan. 14.

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